When a family member or loved one decides to challenge a Will (or a Trust) based on "undue influence," proof is often a challenge. Undue influence in executing a Will is not usually exercised openly in the presence of others. It is usually perpetrated in secret. Changes made to a person's estate plan due to undue influence are often hidden by the perpetrator. As a result, most of the time undue influence cannot be proven directly. In many instances, it must be proven by way of presumptions and indirect or circumstantial evidence.
Under Florida law, certain facts can give rise to a presumption that undue influence was involved in the preparation or execution of a Will. The presumption of undue influence arises when (1) a person with a confidential relationship with the testator, (2) was active in procuring or securing the preparation or execution of the Will and (3) that person is a substantial beneficiary of the Will.
Determining if a person has a confidential relationship is fairly straightforward. This involves a relationship where the testator puts trust in another person and that other person accepts the trust and acts upon it. Determining if a person is a substantial beneficiary is easy to establish--it can be determined from the face of the Will. The tougher element giving rise to the presumption of undue influence is whether the accused person was 'active in procuring" the Will.
Among the factors which Florida courts may consider on the issue of active procurement of a Will are: (a) presence of the beneficiary at execution of Will; (b) presence of the beneficiary on those occasions when testator expressed a desire to make or update a Will; (c) recommendation by the beneficiary of an attorney to prepare a Will; (d) knowledge of the contents of a Will by the beneficiary prior to execution; (e) giving of instructions on the preparation of a Will by the beneficiary to attorney preparing the Will; (f) securing of witnesses to the Will by the beneficiary; and (g) safekeeping of the Will by the beneficiary subsequent to execution. These elements were set forth in a famous case from the Florida Supreme Court, In re: Carpenter's Estate, 253 So.2d 697 (Fla., 1971).
These elements are not exclusive--others can be considered--and not all of these elements have to be present. In fact, in most cases, there are less than all of the elements. A court can weigh any or all of the elements, along with any others which might be relevant, in order to determine whether there was active procurement.
So if a person challenging a Will can show that a substantial beneficiary who occupied a confidential relationship under circumstances where there are enough elements giving rise to active procurement, what happens? A presumption arises that there was undue influence--but this is a rebuttable presumption. If the beneficiary can present a reasonable explanation for his or her active role in decedent's affairs, then the presumption goes away. However, that does not finally resolve the matter.
Although a reasonable explanation makes the presumption go away, the trial court may still consider the facts which gave rise to the presumption and any rebuttal evidence in addition to any other pertinent evidence to determine which party has presented the greater weight of evidence of whether there was undue influence. However, at that point, the court is not relying on the presumption; it is then weighing all of the evidence and determining which party "tips the scales" for or against the role undue influence may have played in the establishment of a Will.